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Garetson Bros. v. American Warrior, Inc.

Court of Appeals of Kansas

April 3, 2015

GARETSON BROTHERS and FORELAND REAL ESTATE, LLC, Appellees,
v.
AMERICAN WARRIOR, INC., Successor in Interest to KELLY and DIANA UNRUH, Appellant. and RICK KOEHN, Appellee

Page 688

Appeal fro Haskell District Court; LINDA P. GILMORE, judge.

SYLLABUS

BY THE COURT

1. The Kansas Water Appropriation Act (KWAA), K.S.A. 82a-701 et seq., dedicates all water in Kansas to the use of the people of the state, subject to the control and regulation of the state in the manner prescribed in the Act. K.S.A. 82a-702.

2. K.S.A. 82a-703 authorizes the appropriation of water, subject to senior, vested, or prior appropriation rights to divert water from the same source.

3. The holders of appropriation rights do not own the groundwater--they simply have a right to divert it for a beneficial use--including irrigation. K.S.A. 82a-707(a) and K.A.R. 5-1-1(o).

4. A water right in which a person is lawfully authorized to divert and use water is deemed to be a real property right that passes as an appurtenance with a conveyance of the land. K.S.A. 82a-701(g).

5. K.S.A. 82a-706 grants the chief engineer of the Kansas Department of Agriculture's Division of Water Resources (DWR) the authority to enforce and administer the laws of this state pertaining to the beneficial use of water, and the chief engineer shall control, conserve, regulate, allot, and aid in the distribution of water resources in accordance with the rights of priority of appropriation.

6. K.S.A. 2014 Supp. 82a-707(c) provides that the first person to divert water from any source and use it for beneficial purposes has prior right thereto. In other words, " the first in time is first in right."

7. K.S.A. 82a-716 and K.S.A. 82a-717a afford a senior water right holder the right to seek injunctive relief--and in some cases monetary damages--in order to protect his or her prior right against a junior water right holder.

8. If the State is not a party to a legal action, the district court has the authority under K.S.A. 82a-725 to order DWR or its chief engineer to serve " as referee, for investigation of and report upon any or all of the physical facts involved and the division or its chief engineer shall thereupon make such an investigation and report as ordered by the court."

9. K.S.A. 82a-725 further requires that a district court shall review the DWR's report--as well as any objections properly filed by the parties--and that the report shall serve as evidence of the physical facts.

10. It is appropriate for a district court to consider a report filed by DWR under K.S.A. 82a-725 as evidence at a temporary injunction hearing without first requiring the chief engineer or another witness to testify about the report so long as the district court also allows the parties to present evidence in an attempt to rebut the report.

11. It is not the role of an appellate court to reweigh the evidence, assess the credibility of the witnesses, or resolve conflicting evidence presented at a temporary injunction hearing.

12. Looking to the plain and unambiguous language of K.S.A. 82a-716 and K.S.A. 82a-717a, it is apparent that the legislature intended that the holder of a senior water right may seek injunctive relief to protect against a diversion of water by a holder of a junior water right when that diversion does or would diminish, weaken, or injure the prior right.

13. The purpose of a temporary injunction is not to determine any disputed right but to prevent injury to a claimed right pending a final determination of the controversy on its merits. In other words, a temporary injunction merely preserves the status quo until a final determination of a controversy can be made.

14. In the context of a temporary injunction, the status quo is the last actual, peaceable, noncontested position of the parties that preceded the pending controversy.

Gerald O. Schultz and Zachary D. Schultz, of Schultz Law Office, of Garden City, for appellant American Warrior, Inc.

Lynn D. Preheim, J. Michael Kennalley, and Jordan E. Kiefer, of Stinson Leonard Street LLP, of Wichita, for appellees Garetson Brothers and Foreland Land Real Estate, LLC.

Rick Koehn, appellee, Pro se.

Before BRUNS, P.J., BUSER and POWELL, JJ.

OPINION

Page 689

[51 Kan.App.2d 372] Bruns, J.:

This is an interlocutory appeal arising out of a water appropriations action in Haskell County. Specifically, this action involves the priority of water rights between a senior right holder and a junior right holder to use water from the Ogallala Aquifer. The district court granted a temporary injunction in favor of the senior right holder and ordered the junior right holder to refrain from pumping water from two wells located on the junior right holder's land during the pendency of this action. On appeal, the junior right holder seeks to vacate the temporary injunction. Because we conclude that the district court did not abuse its discretion, we affirm the district court's decision to grant a temporary injunction.

Facts

Historical Background

On March 14, 2005, Garetson Brothers, a Kansas general partnership, filed a complaint with the Kansas Department of Agriculture's

Page 690

Division of Water Resources (DWR) alleging that two junior water rights located on neighboring land had impaired its senior water right. At that time, Garetson Brothers owned a tract of land in Haskell County upon which a single well--used for crop irrigation--is located. A prior owner of Garetson Brothers' land had filed for and received a vested water right in the well on September 12, 1950. This vested right is numbered HS-003.

[51 Kan.App.2d 373] The first neighboring well at issue in this action was approved in 1964 and was given an appropriation water right numbered 10,467. The second neighboring well was approved in 1976 and was given an appropriation water right numbered 25,275. Both of these wells are also used for the irrigation of crops. All of the wells are located in Groundwater Management District 3 in Southwest Kansas, overlying the Ogallala Aquifer. The Ogallala Aquifer is part of the High Plains Aquifer System spanning eight Midwestern states.

DWR immediately began investigating the complaint by installing water level monitoring equipment and gathering data to help determine the degree of well-to-well impairment--if any--occurring between the water rights at issue. In addition, DWR began investigating three other neighboring wells that pulled water from the same source. In 2007, however, Garetson Brothers withdrew the complaint. In their letter withdrawing the complaint, Garetson Brothers wrote:

" During the nearly two years since we filed for relief, our goal has been to bring attention to the urgent state of decline of the Ogallala Aquifer in [Southwest Kansas]. Rather than being a positive catalyst for change in the effort to extend the useful life of the aquifer as a whole we have been perceived as selfishly damaging our neighbors for our own gain."

Despite the withdrawal of the complaint, DWR continued to monitor these wells and record data.

Filing of Present Action

On May 1, 2012, Garetson Brothers filed a petition in Haskell County District Court, alleging impairment of its senior water right by Kelly and Diana Unruh--who owned water rights 10,467 and 25,275 at that time. The Unruhs filed an answer on June 11, 2012, in which they admitted to owning the two junior water rights but denied the allegations of impairment. In addition, the Unruhs asserted a counterclaim against Garetson Brothers, claiming that the senior water right had been lost when the well on the Garetson Brothers' land had been redrilled, allegedly changing the water's point of diversion. The Unruhs also alleged that the new well was impairing their junior water rights.

[51 Kan.App.2d 374] On January 31, 2013, the district court appointed DWR as the referee for fact investigation and report pursuant to K.S.A. 82a-725. In a preliminary report filed with the district court on April 3, 2013, DWR concluded that the Garetson Brothers' senior water right " has been substantially impaired by operation of [Junior] Water Rights 10,467 and 25,275[,]" as well as by other neighboring water rights. The preliminary report stated, however, that more testing and data were needed to determine the extent of the impairment.

First Temporary Injunction

After receiving DWR's preliminary report, the Garetson Brothers filed a motion for temporary injunction. On the morning of May 16, 2013, prior to the commencement of an evidentiary hearing on the motion, counsel for the Unruhs disclosed for the first time that his clients had sold the land and the water rights to American Warrior, Inc. (AWI), a gas compressor packager. Because AWI had previously been represented by District Judge ...


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